Military Contempt: The Court of Cassation Confirms the Legitimacy of Art. 81 C.P.M.P. (Judgment no. 29723 of 2025)
Military criminal law, with its specific aims of protecting discipline and cohesion within the Armed Forces, often presents peculiarities that distinguish it from common criminal law. A recent and significant ruling by the Court of Cassation, judgment no. 29723 of 2025, offers a fundamental clarification regarding the crime of military contempt, governed by Article 81 of the Code of Military Penal Law of Peace (C.P.M.P.). This decision addresses questions about the constitutional legitimacy of the provision, reaffirming the autonomy and specificity of the military legal system.
Differences Between Military and Common Contempt
The main issue concerns the comparison between Article 81 C.P.M.P. and Article 290 of the Criminal Code, which governs common contempt. The crucial differences are two: the requirement for authorization to prosecute from the Minister of Justice and the severity of the penalties. For common contempt, ministerial authorization is often required, whereas for military contempt, it is not foreseen. Furthermore, Article 81 C.P.M.P. contemplates more severe penalties. These disparities have raised questions of constitutional legitimacy, in relation to Articles 3 (equality), 24 (right to defense), and 112 (mandatory prosecution) of the Constitution.
The Ruling of the Court of Cassation: Manifestly Unfounded
The Court of Cassation, presided over by G. S. and with P. M. as rapporteur, rejecting the appeal of the defendant R. P., declared the questions of constitutional legitimacy manifestly unfounded. The summary of the judgment is clear:
The question of the constitutional legitimacy of art. 81 of the Italian Code of Military Penal Law of Peace, for conflict with articles 3, 24, and 112 of the Constitution, is manifestly unfounded, both with reference to the lack of provision for the necessity of authorization to prosecute by the Minister of Justice, unlike what is prescribed for the analogous crime of contempt provided for by art. 290 of the Criminal Code, and with reference to the greater severity of the sanctioning treatment compared to the latter. (In its reasoning, the Court observed, with regard to the first aspect, that authorization to prosecute is not a procedural guarantee, but a political act, free in its aims and not subject to judicial review, and therefore the legislator's choice to exclude its necessity is equally not subject to review).
The Court reiterated that authorization to prosecute is not a procedural guarantee but an unreviewable political act. The legislator's choice to exclude it for military contempt is, therefore, legitimate. The specificity of the military system, which protects essential values such as discipline and cohesion, justifies a differentiated regime and greater severity of sanctions, deemed proportionate to the legal interest protected.
The invoked constitutional principles were:
- Art. 3 of the Constitution: Principle of equality.
- Art. 24 of the Constitution: Right to defense.
- Art. 112 of the Constitution: Mandatory prosecution.
Conclusions: Autonomy and Function of Military Criminal Law
Judgment no. 29723 of 2025 reaffirms the autonomy and specific function of military criminal law. It emphasizes how the peculiarities of the military system, dictated by unique needs for order, discipline, and cohesion, justify criminal and procedural rules distinct from common ones, without violating constitutional principles. This ruling is fundamental for understanding the necessity of enhanced protection for military loyalty and defense, which are key elements for state security.
